Christopher P. Soper, Esq., Pepper Hamilton LLP, Princeton, NJ, and Jeremy D. Frey, Esq., Pepper Hamilton, LLP, Philadelphia, PA, Counsel for Plaintiff.
Jordan Milowe Anger, Esq., Office of the U.S. Attorney, Newark, NJ, Counsel for Defendants Donna Zickefoose; Clinical Director, FTD; Samir Sulayman, M.D., FTD; Edward Gostkowski, PA-C, FTD; Ed Eichel, AHSA, FTD; Abigil Lopez De, LaSalle, M.D., FTD; Chief Pharmacist, FTD;, Correctional Officer Hall; Lt. Hall.
Franklin Lewis Flacks, Esq., Rottkamp & Flacks, Esqs., Trenton, NJ, Counsel for Defendants St. Francis Medical Center and Nurse, Carol Landau.
NOEL L. HILLMAN, District Judge.
This matter is presently before the Court pursuant to: (a) a Motion  to Dismiss for Lack of Subject Matter Jurisdiction and for Summary Judgment (the "Motion to Dismiss") by Defendants United States of America, Donna Zickefoose, Edward Eichel, Edward Gostkowski, Oke Johnson, and Michael Hall,  and (b) a Motion  for Summary Judgment by Defendants St. Francis Medical Center and nurse Carol Landau.
For the reasons state below, the Motions will be granted.
This matter was originally opened to the Court by Plaintiff
Angel Manuel Pinet's submission, on or about May 6, 2010, of a Complaint , pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971), and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and an application for leave to proceed in forma pauperis. In that Complaint, Plaintiff alleged that, while he was confined at the Federal Correctional Institution at Fort Dix, New Jersey, ("FCI Fort Dix") the named defendants had violated his rights to adequate medical care, under the Eighth Amendment proscription against cruel and unusual punishment, by their response to his alleged need for ophthalmic treatment beginning in 2008. The named defendants in the original Complaint were Warden Donna Zickefoose, the "Clinical Director" at FCI Fort Dix, Samir Sulayman, M.D., physician assistant Manuel Calaguio, physician assistant Edward Gostkowski, and a "John Doe" optometrist.
On or about July 26, 2010, Plaintiff submitted a "Supplement[al] Complaint, " ,  in which he added the United States as a defendant under the Federal Tort Claims Act, and in which he asserted additional factual allegations, against Defendants Donna Zickefoose, the Clinical Director, Dr. Samir Sulayman, and physician assistant Edward Gostkowski. More specifically, Plaintiff alleged that he had been diagnosed with hemorrhoids in 2007, that he had received medication that was stopped about eight months earlier, or in approximately October 2009, after which time he was forced to use over-the-counter medication which did not relieve his symptoms. He further claimed that from May 21 through 26, 2010, he was in terrible pain from his hemorrhoids protruding and that he was given no medical attention despite his complaints. He stated that he attempted to resolve his medical concerns regarding the hemorrhoids with Warden Donna Zickefoose who, allegedly responded that she was not a doctor. According to Plaintiff, he then spoke to the Clinical Director, who stated that the doctor could not interrupt his other appointments to respond to Plaintiff's complaints about his hemorrhoids. Finally, Plaintiff asserted that Dr. Sulayman prescribed a suppository medication on May 26, 2010, but that the Clinical Director refused to provide the prescribed medication and further refused to sign Plaintiff up for sick call on June 7 and 8, 2010.
By Opinion and Order [7, 8] entered September 30, 2010, this Court granted Plaintiff leave to proceed in forma pauperis and dismissed without prejudice the Complaint and Supplement[al] Complaint for failure to state a claim. Plaintiff was granted leave, within 45 days after entry of the dismissal Order, to move to reopen this case, attaching to any such motion a proposed amended complaint addressing the deficiencies of the Complaint and Supplement[al] Complaint as stated in the Court's Opinion.
On or about November 1, 2010, Plaintiff submitted such a Motion  to reopen, attaching a proposed Amended Complaint. In the Amended Complaint, Plaintiff purported to assert claims under Bivens, the Federal Tort Claims Act, and the Americans with Disabilities Act. Plaintiff named as defendants the United States of America, Warden Donna Zickefoose, Ed Eichel, Clinical Director Abigail Lopez de Lasalle, Samir Sulayman, M.D., physician assistant Edward Gostkowski, the unnamed Chief Pharmacist, and consultant optometrist Francis Sieber. In the proposed Amended Complaint, Plaintiff limited his allegations to claims related to the treatment of his hemorrhoids. By Order  entered June 16, 2011, this Court granted the Motion to reopen and ordered the Clerk to file the proposed Amended Complaint.
On August 24, 2011, Plaintiff filed a Motion  for leave to file a Second Supplemental Amended Complaint, which the Magistrate Judge assigned to this matter granted by Order  entered December 28, 2011. That Order  directed that the Amended Complaint  and proposed Second Supplemental Amended Complaint, together, would constitute the Second Amended Complaint . Following this Court's Order  appointing counsel to represent Plaintiff, Plaintiff filed his Third Amended Complaint  against Defendants the United States, Donna Zickefoose, Edward Eichel, Edward Gostkowski, Oke Johnson, M. Hall, Kulin Oza, Carol Landau, and St. Francis Medical Center. The claims of the Third Amended Complaint relate only to alleged violations of Plaintiff's Eighth Amendment right to adequate medical care, beginning in October 2009, with respect to his hemorrhoid condition.
In the Third Amended Complaint, Plaintiff alleges that around July 2008, a physician at the Federal Correctional Institution at Fort Dix ("FCI Fort Dix") prescribed steroid suppositories to treat Plaintiff's hemorrhoid condition, a treatment which Plaintiff found effective. According to Plaintiff, however, beginning around October 2009, Defendant Edward Gostkowski, a physician assistant, refused to refill the prescription for suppositories, allegedly because they were too expensive, and, instead, treated Plaintiff with hydrocortisone cream only. Plaintiff contends that the cream was not effective and that his hemorrhoids began to protrude from his body and became very painful. Plaintiff asserts that Defendant Gostkowski denied his repeated requests to see a physician, even as his condition worsened alarmingly.
Plaintiff further alleges that, on about May 25, 2010, he approached Defendant Warden Zickefoose to obtain medical services, but she demurred, stating that she was not a doctor. Plaintiff states that, on the same day, he approached Defendant Edward Eichel, the Assistant Health Services Administrator at FCI Fort Dix, who allegedly declined to assist Plaintiff in seeing a physician for his ailments. Nevertheless, on May 26, 2010, Plaintiff was examined by Dr. Sulayman at FCI Fort Dix, who diagnosed Plaintiff with a large external hemorrhoid with clotted blood, extending approximately 3 cm from the anal verge. Plaintiff asserts that Dr. Sulayman prescribed steroid suppositories in an attempt to treat the hemorrhoids before surgery, but that Chief Pharmacist Ms. Hitties refused to provide the prescribed medication.
Plaintiff states that he again sought medical care on June 8, 2010, but that Defendant Gostkowski denied the suppository prescription, informing Plaintiff that the prescribed medication was not on the prison's approved medication list. Plaintiff contends that Defendant Gostkowski refused to permit Plaintiff to see Dr. Sulayman.
Plaintiff asserts that he wrote to the Director of the Bureau of Prisons on June 10, 2010, concerning the alleged refusal to provide the prescribed suppository medication. He alleges that Warden Zickefoose responded that Dr. Sulayman had told Plaintiff that the Health Services Administration ("HSA") should attempt to control the hemorrhoids with steroid suppositories. Plaintiff contends that he continued to seek the suppository medication, unsuccessfully, for the next ten months, and that he was forced repeatedly to reinsert his hemorrhoids into his rectum, with his fingers, causing severe pain. On about April 8, 2011, Plaintiff was transported to St. Francis Medical Center, where he received a hemorrhoidectomy and perianal mass surgery.
Plaintiff asserts that, during transportation from St. Francis Medical Center, and contrary to medical instructions, Defendant nurse Carol Landau required him to sit directly on his surgical incision, which he states was painful.
Plaintiff alleges that, after his return to FCI Fort Dix, Defendants nurse Oke Johnson and Lt. M. Hall denied him medical assistance and pain medication. Plaintiff received pain medication the next day, but suffered an allergic reaction to the medication.
According to Plaintiff, the surgical discharge summary advised that if the surgical pack left in Plaintiff's rectum did not come out on its own within 24 hours, HSA staff was directed to remove it. Plaintiff contends that the pack did not come out on its own, that he told unnamed HSA staff on April 10 that it needed to be removed, and that he removed it himself on April 11 because he had not received assistance from HSA staff. Plaintiff also contends that he did not receive the prescribed pain reliever Percocet, but that he received Tylenol instead until April 15, 2011, when he was provided Naproxen.
Plaintiff then describes alleged deficiencies with his surgery and post-surgical treatment. He states that the surgery was not successful, as a half-inch section of his intestine or perianal mass continued to protrude, causing him severe pain. Plaintiff alleges that he requested an examination of the incision about two weeks after the surgery, when a Mr. Calaguio cut off about three inches of silk dangling from the incision, but did not otherwise examine the incision. Plaintiff continued to complain about his condition, without result, until July 6, 2011, when a staff member examined him and determined that a follow-up examination was needed. According to Plaintiff, he was examined by another surgeon on October 18, 2011, who determined that Plaintiff's condition required a second surgery. Plaintiff received that second surgery in November 2011. Plaintiff claims that the second surgery was not successful and that he is scheduled for a third surgery, on a date to be determined.
Plaintiff contends that the events described in the Third Amended Complaint amount to a violation of his rights under the Eighth and Fourteenth Amendments.
As noted above, Defendants Warden Donna Zickefoose, Edward Eichel, Edward Gostkowski, and Lt. Michael Hall (the "Federal Defendants") have moved to dismiss this matter, or for summary judgment, for failure to exhaust administrative remedies, for failure to state a claim, and on grounds of qualified immunity. St. Francis Medical Center and nurse Carol Laundau (the "St. Francis Defendants") have moved for summary judgment, or to dismiss, on grounds that they are not government actors, that the facts do not suggest "deliberate indifference, " and that Plaintiff has failed to submit the required Affidavit of Merit, see N.J.S.A. 2A:53A-27.
This Court has considered the Motions and the various submissions of the parties and will decide the Motions on the briefs, pursuant to Federal Rule of Civil Procedure 78(b).
II. DISMISSAL FOR FAILURE TO STATE A CLAIM
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move to dismiss a claim in a civil action for "failure to state a claim upon which relief can be granted." In addition, this Court must dismiss, at any time, certain in forma pauperis and prisoner actions that fail to state a claim. See 28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental defendant); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions). "The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)." Schreane v. Seana , 506 F.App'x 120, 122 (3d Cir. 2012) (citing Allah v. Seiverling , 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard , 492 F.App'x 230, 232 (3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States , 287 F.App'x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement need only give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus , 551 U.S. 89, 93 (2007) (citations omitted).
While a complaint... does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... Factual allegations must be enough to raise a right to relief above the speculative level....
Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007) (citations omitted). That is, a complaint must assert "enough facts to state a claim to relief that is plausible on its face." Id. at 570.
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Twombly , 550 U.S. at 556). Thus, a court is "not bound to accept as true a legal conclusion couched as a factual allegation, " and "[t]hreadbare recitals of the elements of a cause of action, ...